That's the title of a New York Times editorial. It appeared in the Saturday edition.
The history of capital punishment in this country has had many horrifying turnings, few more macabre than a warning from states employing lethal injection that a federal court ruling has left them facing a shortage of the imported drug they rely on to kill death-row felons.
The scarcity arose after the one domestic manufacturer stopped making sodium thiopental in 2010. In March, Judge Richard Leon of Federal District Court in Washington blocked the importation of the drug, ruling the Food and Drug Administration had not approved it for “safety and effectiveness,” as required for imports. The F.D.A.’s position was that reviewing such a drug designed for death “clearly falls outside of F.D.A.’s explicit public health role.”
Thirty-three states use lethal injection, and 15 of them have asked the Department of Justice to appeal Judge Leon’s ruling. The judge’s decision is a wise and welcome one that the Justice Department should accept. Capital punishment should be outlawed in all its forms, as it is in most advanced societies.
The lethal-injection quandary is playing out in a second lawsuit brought by The Associated Press and other news organizations to challenge five states that are violating a 2002 federal court mandate that the law requires every step of execution to be witnessed in behalf of the public. When the death chamber curtains have been drawn lately in Idaho, Washington, Montana, Arizona and Nevada, the main insertion of the lethal injection has already occurred. Some subjects have been seen to barely move, with suspicions arising about some inhumane trauma taking place out of sight.
"DOJ appeals injunction on import of death penalty drug," is the Friday afternoon post by Alison Frankel for ReutersLegal.
On Friday, the U.S. Department of Justice filed notice that it is appealing an injunction barring the Food and Drug Administration from permitting states to import the anesthetic thiopental as a death penalty drug. U.S. District Judge Richard Leon of federal court in Washington, D.C., entered the injunction on March 27, after concluding that the FDA was violating the Food, Drug, and Cosmetic Act when it permitted an unapproved drug to be brought into the country from a London wholesaler. (A U.S. supplier stopped making the drug in 2009.) The judge said the FDA had to abide by the same rules it imposes on everyone else.
"The FDA has acted inconsistently with FDA regulations, acted inconsistently with its longstanding practices, and acted in a manner contrary to the purpose of the FDCA, thereby threatening the public health," Leon wrote.
The death penalty prisoners who brought the thiopental case are represented by Sidley Austin, which is handling the suit pro bono. But Sidley also has a roster of pharmaceutical clients who want their regulator to adhere to limits on its discretion. It turns out that Sidley is developing a microniche business of demanding government accountability for clients who allege they're the victims of agency overreaching.
"FDA Is Appealing Court Bar to Drug Used in Executions," is the Bloomberg report by Tom Schoenberg.
The U.S. Food and Drug Administration is appealing a federal judge’s order that banned the importation of sodium thiopental and its use in executions.
The FDA, which filed a notice of appeal today in the federal court in Washington, is seeking to overturn a ruling in March favoring 21 death row inmates who challenged the agency’s use of sodium thiopental, an imported drug given as anesthesia before a lethal injection is administered.
U.S. District Judge Richard Leon held that the agency violated its own rules by allowing the drug into the country without first ensuring its effectiveness. Leon said the agency created “an unnecessary risk” that prisoners “will not be anesthetized properly prior to execution.”
Leon said the agency had created a “slippery slope” for the entry of other unapproved drugs.
The judge banned the import of thiopental, calling it a misbranded and unapproved drug, and directed Arizona, California, Georgia, South Carolina and Tennessee and any others with stocks of the barbiturate to send them to the FDA.
On May 21, 15 state attorneys general sent U.S. Attorney General Eric Holder a letter urging the department to appeal Leon’s ruling. The legal officers said the case was wrongly decided and might impair states’ ability to execute prisoners.
In a lawsuit filed in February 2011, the inmates said the FDA allowed states to import “bulk amounts” of thiopental. The drug hasn’t been sold in the U.S. since 2009, when the sole U.S. manufacturer, Hospira Inc. (HSP), stopped producing it.